medical law essay

Analysis Of An Ethical Dilemma

This essay analysis an ethical dilemma in relation to professional, ethical and legal issues it raises and its international perspective. The scenario involved a patient who was admitted to intensive care and had been unconscious for several weeks following a traumatic head injury. Tests, which had previously been conducted within the hospital setting, were showing that the patient had no level of brain activity, which indicated brain death, and as a consequence, the medical team thought it would be appropriate to turn off the patient’s life support machine. The patient's family however remained convinced that the patient would still recover and were opposed to turning off the life support machines.

This topic clearly presents nursing and medical staff with many ethical, professional and legal dilemmas. The scenario is difficult for the patient’s family as they are unwilling to let go of their loved one, however at the same time, a diagnosis of brain death has been made from the patients test results.

Brain death is a complex issue, which is described in the literature and has become available for discussion following technological advancements in the arena of critical care. Brain death is defined as the irreversible end of all brain activity which is necessary to sustain life due to total necrosis of the cerebral neurons following loss of blood flow and oxygenation. Consequently, it needs advanced life support to sustain the rest of the body’s system (Eelco & Widjicks, 2001). It is however the case, that with advancements in technology alongside the development of artificial ventilators, otherwise known as life support machinery, that methods for cardiovascular support have become available which have presented healthcare staff with an array of new challenges for ascertaining the end of life for patients diagnose with brain death whose lives could be preserved by using these complicated technological devices (Sullivan, Seem & Chabalewski, 1999). Subsequently, with the development of these machines, it is perhaps more difficult for the families of patients to acknowledge the need to make a decision to turn off the ventilation when it is clear that a patient is no longer able to sustain life without the additional support.

It is perhaps, in this patient’s case, important to look at the legal stance and position regarding the patient’s status. It is known, that since the introduction of the definition of “brain stem death," the criteria which is recognised by the Uniform Determination of Death Act, promulgated in 1980 and that which is supported by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research, has identified death to be the event in which “An individual, who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brainstem, is dead. A determination of death must be made in accordance with accepted medical standards." (Guidelines for determining death, 1981)

Despite there being a recognisable definition which defines death, the concept of brain death and death in generalised terms is one which is a difficult concept and not easily dealt with. As such, it continues to be a subject matter of international debate amongst the medical profession and amongst philosophers, and ethicists alike. It is however, important that when treating any patient, there is a development of achieving a multidisciplinary consensus alongside a consensus which can be reached with the patient’s family, wherever possible to ensure that the best care is provided for both the patient and their family, before and after turning off the artificial life support machinery.

In this situation, it is important to ensure that the family has the best possible, up-to-date knowledge regarding brain stem death and its consequences for the patient. The elimination of any confusion which the family may have regarding brainstem death and the patient’s likelihood of recovery from it, cardiopulmonary death criteria is an important step in highlighting the ethical, moral and legal issues regarding maintaining the patient on the artificial ventilator. In such a setting, it is important that family members of the patient receive reassurance and accurate information and those they are informed that their relative’s presence of a heartbeat, which is being created via their machinery, does not necessarily mean that they are alive. It is also important to ensure that they are aware that they will not get better through treatment or intensive rehabilitation.

As it is the case that brain death is irreversible this is important in the ethical decision making process as whether to maintain the patient’s life support. As what Bernat (1998), said that patients who are brain dead have permanently lost their capability to think, consciousness of self or surroundings and cannot communicate with other people. In other words, the patient’s quality of life is poor. Further treatment may cause more suffering and prolong the patient’s agony. The clinician’s judgement was based on the fact that the outcome of the treatment is less beneficial to the patient and whatever intervention given patient will not recover since the diagnosis is irreversible. According to UK Clinical Ethics (2009), “in treatment decision in the end of life care and the dilemma often revolves around what course of action will be in the patient’s best interest. It is difficult to see how death can be a benefit or in the patient’s interests, but in some circumstances, if existing quality of life is so poor, or treatment is very burdensome, then the balance of harms and benefits may suggest that continuing treatment is not a benefit to the patient." (UK Clinical Ethics, Ethical consideration page). Prolonging the process of dying of the terminally ill persons with permanent unconscious condition may cause loss of their dignity, unnecessary pain and suffering, and rightful death, while providing nothing medically necessary or beneficial to the patient. (Senate Bill No. 2008, 1992).

When taking to the family members about their relatives position and their desire to maintain the patient’s life support, it is of great importance that the nurses should are fully confident in talking about the concept of brain death, that they are fully familiar with it and with its medical and legal criteria. This is because nurses may need to explain brain death to the relatives who are confused and in predicament. Way, Back and Curtis (2002) said physicians are often poor at discussing end of life issues, and even when communications occur, it is still ineffective. Azoulay et. al., (2000), conducted a study evaluating physician-family meetings found that 54% of family members had not understood the basic features of the patient’s diagnosis, prognosis or treatment. In addition, nurses also have a great role in the end of life care. They are expected to be there with the patient and families to validate feelings and give moral and emotional support, clarify and interpret information, and help the relatives come to terms with end-of-life decisions, assist on the grieving process and help to let go their love ones (Bach, Ploeg & Black, 2009). It is often, as in this patient’s case confusing for relatives to understand that the patient is dead despite the definition making it appear as though it is only the patient’s brain which is dead (Franz et al, 1999). To prevent confusion, it is more helpful to tell the relatives that their loved one is “dead," because use of this words it can help the family understand that death has occurred. A clear definition of the diagnosis should be given and reinforced.

Legally defining when a patient dies is also important within the context of patients who are declared ‘brain dead’. It is sometimes confusing for the family members as they feel that the removal of the patient from their life support machine will lead to their death, however this is not the case. Legally, death is defined at the point in time in which the patient meets all of the criteria of neurological death. From this point onwards the patient would be defined as being ‘dead’ regardless of whether or not they remained on artificial ventilation. This information could help the patients family to feel less confused about the situation and come to terms with the fact that, through turning off the machines, they are not ‘killing’ their relative, in fact, they are not doing anything other than let the patient’s body be released from its artificial state of maintaining cardiorespiratory function. (Chabalewski and Norris, 1994)

In the United Kingdom, a patient has the right to refuse and accept treatment on the basis that the patient is competent and with adequate information about the implications of his/her choices. No one other than a doctor can decide about the provision or withholding of treatment from an adult who is unable to give consent, and if their wishes are not known, although good practice dictates that the family should be consulted and kept informed. The doctor will make an assessment of the benefits, burdens, risks, and overall acceptability of any treatment (General Medical Council, 2006, par. 14-15). The literature however is full of discussion regarding the ethical propriety of doctors deciding, on the grounds of the fair allocation of resources, to treat one patient rather than another because one is considered more likely to benefit and this is indeed a very contrived topic, in which it is difficult for medical and nursing staff to agree on in a great number of cases. Some individuals have challenged the appropriateness of such decisions, which have been made because they are based on the value judgments of doctors rather than on the wishes of patients. This would add to the ethical dilemma in this patient’s case. However, even those who believe this admit that brain death is one of the few conditions about which such an argument is not relevant. (Jennett, 1981) This is because there is no question of balancing the comparative benefits expected from treating two different patients, as the brain dead patient can derive no benefit from maintaining ventilation.

In the Philippines, as stated on the Philippine Senate Bill created by Defensor, “adult patient has the basic right to decide their own health care, including the decision to withheld or withdraw life sustaining treatment in cases of a terminal or permanent unconscious condition" (par. 1-5). On the other hand, if the unconscious patient has no written directives, the nearest of kin, who is an adult and with sound mind has the full right to decide for the patient’s care whether to withhold or withdraw treatment. (Philippine Senate Bill No. 2008, 1992).

In other country such as France, they do not have any proper guidelines on withholding and withdrawal of life-sustaining treatment and information on incidence of such decision is limited. However, withdrawing and withholding life support therapies are widely practise in French ICU’s, despite their prohibition by the French legislation (Ferrend, Robert, Ingrand & Lemaire, 2009).

This patient’s case highlights also the ethical issue of importance of care. If ventilation of the patient should continue in this case, this will mean that the patient will be ventilated despite being legally dead. In such situation, it would be highly likely that the unit would be full with patients all whom require ventilation. If a request was made to confine a patient who needs ventilation this should have to have been refused as the unit would have been unable to accept the patient and might instead transfer him or her to another hospital. This then raises the ethical question of to whom our responsibility of care greatest either to the grieving family or the dying patient.

According to Sprung et al (1995), brain death is one of the situations for which there are accepted medical criteria that enable the autonomy of the clinicians to predominate over the requests of the patient's family. In this patients case, there would be concern about the impact of prolonged care on other needy patients as previously discussed, however it is important that this concern is empathically explained to the family members and that they are aware of any legitimate reasons why other patients could not receive treatment in the light of their relative receiving any continued ventilation. The patient’s and the patients families moral lives should also be considered in this case, because if physicians are not aware of the fact that knowledge that the prolongation of the death of their family member might result to injury or death to another could be the consequence of keeping their relative alive may have severe moral repercussions for the family, the doctors or medical staff themselves may be at risk of gross paternalism. (Swinburn, Ali, Banarje, Khan, ranford & Jennet, 1999). For this reason, clinicians in this setting should and must strive to meet competing responsibilities of patients to the best of their abilities. (Smith, 1998) It is also important that nursing staff consider the religious viewpoints of patients and their interpretation of brain stem death. Consequently, according to Ankenny et. al. (2005), the patient’s nearest of kin may withdraw the life support. In an attempt to prolong a poor quality of life, one must not lengthen the suffering at a high cost. However, some religious view points, including those “of most contemporary poskim in Eretz Yisroel (other than the Chief Rabbinate) have unequivocally repudiated the concept of death based on neurological or respiratory criteria". (Athar, 1995)

Thus, as noted, "brain death" is the lawful description of death within the UK and within the vast majority of the United States. (Breitowitz, 1997) However, New York is the only state that entails medical staff to make a sensible effort to inform family members before a determination of the diagnosis and to make "reasonable accommodations" for the religious beliefs of the patient. In all other dominion, doctors would be authorised individually to disconnect a patient from life-support mechanism once the patient’s diagnosis meets the legal definition of death. It is the case that medical staff may or may not defer to the families wishes but there s no duty on their part to do so or even to determine what those wishes are (Breitowitz, 1997). In this respect, it appears important from a holistic and moral nursing manner, to consider the feelings of the family before making any decisions or taking any actions regarding the care of their relative.

The learning outcomes of this patient’s case however have emphasized the critical importance of raising the public's awareness of brain stem death and its implications. The public needs to know that by definition there is no chance of recovery from brain stem death, and the differences between brain death and a persistent vegetative state need to be explained. Sensitive and thoughtful explanations from medical and nursing staff combined with a good understanding of the nature of the patient’s condition will help grieving families cope with this difficult situation. Further learning outcomes have involved the obvious need for empathy when dealing with highly emotive situations such as in this patients case, alongside the need to consider different religious viewpoints and expectations and how these may have an effect on the decisions made by respective families.

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